Ungacta v. Judicial Council of Guam

Opinion

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4 IN THE SUPERIOR COURT OF GUAM 5

6 MICHELE T. UNGACTA, ) Special Proceedings No. SPO 111-14 7 ) Petitioner, ) 8 v. DECISION AND ORDER ) 9 The Judicial Council of Guam and RONALD ) B. AGUON as Hearing Officer for the Judicial) 10 Council of Guam ) ) II Respondents. ) ) 12 and ) 13 ) JOSUHA F. TENORIO, as acting ) 14 Administrator of the Court, and the ) SUPERIOR COURT of GUAM, ) 15 ) 16

17 ____________ Real Party in Interest. ) )

18 INTRODUCTION 19 Pursuant to Rule 7.1 and 7.1.1 of the Local Rules of the Superior Court of Guam, 20 Petitioners' Verified Petition for Writ of Prohibition was taken under advisement by the 21 Honorable Judge Michael J. Bordallo on August 25, 2014. Petitioner was represented by 22 attorney Phillip Torres. Having reviewed the memorandum and papers presented, the Court 23 now issues the following decision denying Petitioner's application. 24 BACKGROUND 25 Petitioner asserts that on September 26, 2012, she was notified of a proposed adverse 26 employment action, asserting that she improperly accessed Jus/ware. Pet. at I. Petitioner 27 responded to the notice and on October 19, 2012, she was notified she would be terminated for 28 improperly accessing Jus/ware and for violating the Code of Conduct for Non-Judicial Page I of4 Employees.Jd. On March I, 2013, Petitioner moved to dismiss the Respondents' determination 2 that she should be terminated arguing that her due process rights had been violated; the 3 termination decision relying upon an additional charge to which Petitioner was never allowed to 4 respond or of which she was never notified. ld. 2-3. On April 24, 2014, Respondents denied 5 Petitioner's motion despite finding that Petitioner's due process rights had been partially 6 violated. ld. at 2 and 5. On August 21, 2014, Petitioner filed a Motion to Void for Lack of 7 Jurisdiction the Respondents' decision to terminate Petitioner's employment. ld. at 3. Her 8 request was based upon Respondents' April 24, 2014 finding of a partial due process violation. 9 ld. at 3, 5. On the same day Respondents refused to consider the motion, or reschedule the 10 Petitioner's appeal hearing, set to commence on August 22, 2014 at 2:30 p.m.ld. at 3. II

12 On August 22, 2014, at I 0:34 a.m. Petitioners filed the instant Verified Petition for Writ of

13 Prohibition. Id. at I. In it Petitioner seeks an alternative writ of relief from the August 22, 2014,

14 2:30p.m. hearing as well as the entire proceeding.Jd. at 8. Citing Respondents' April24, 2014,

15 order, Petitioner argues and asserts that Respondents' partial determination that the Petitioner's

16 due process rights had been violated left Respondent without jurisdiction. Id. at 3-6. It further 17 argues that Respondents' refusal to consider its August 21, 2014, motion has left it without a 18 plain, speedy and adequate remedy. ld. at 6-7. 19 DISCUSSION 20 Section 31302 of Title 7 of the Guam Code dictates when and how a court can issue a writ 21 of prohibition. It provides: 22 It may be issued by any court except police or commissioner's courts, to an 23 inferior tribunal or to a corporation, board, or person in all cases where there is 24 not a plain, speedy, and adequate remedy in the ordinary course of law. It is issued upon the verified petition of the person beneficially interested. 25 7 GCA § 31302 (2013). 26

27 In June of this year the Guam Supreme reiterated the standard by which a court is to

28 review a petition for writ of prohibition, explaining that, "three threshold criteria that must be

Page 2 of4 satisfied before a writ of prohibition may properly issue [are]: (I) petitioner is without a plain, 2 speedy, and adequate remedy at law; (2) petitioner is a beneficially interested party; and (3) 3 proceedings without or in excess of a tribunal's jurisdiction." Xerox Corp. v. Office of Public 4

5 Accountability, 2014 Guam 14, ~ 20 (parenthetical added). While it has yet to be specifically

6 articulated by the Guam Supreme Court, a general review of other similar jurisdictions reveals 7 that when seeking an alternative writ, a petitioner carries the burden of asserting sufficient facts 8 to support a prima face finding of each of the necessary elements. see, Darbee v. Superior 9 Court, San Mateo County, 25 Cal. Rptr. 520, 524 (Cal. Ct. App. 1962). 10

II Here the Court is not persuaded that Petitioner has met the above burden under the first or

12 last prong. Xerox Corp., 2014 Guam 14, ~ 20. As to the last prong Petitioner simply fails to 13 assert, explain or attach sufficient portions of Respondents' April 24, 2014 decision, for it to 14 analyze or find that Respondents' qualified due process decision left it without jurisdiction to 15 hear the matter. Pet. 3-6. Furthermore, under the above facts, the Court is not persuaded that a 16

17 plain reading of 4 GCA § 4406 requires, that a partial lack of notice voids the employment

18 action in its entirety. 4 GCA 4406 (2013). 19 As to the first prong the Court is also not persuaded that Petitioner has been left without a 20 plain, speedy and adequate remedy. In 20 II the Guam Supreme Court held, "the adequacy of 21 an appeal as a legal remedy turns on whether the invasion of a party's particular right, which is 22

23 deemed worthy of initial protection, would cause irreparable harm if the party was forced to

24 wait to vindicate its right through an appeal." Guam Police Dept. v. Superior Court of Guam, 25 20 II WL 1792556, 20 II Guam 8 ~20. The Court is not persuaded that there have been 26 adequate facts asserted to support a finding of irreparable harm. !d. 27

Page 3 of4 2 CONCLUSION 3 Based on the foregoing, the Court denies Petitioners' application for alternative writ. 4

6 SO ORDERED, this _1t_;Jlyof a~ 2014.

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13 SERVICE VIA COURT BOX

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